## Facts

- Robert L. Wirtz agreed, as an unpaid favor to his friend Dennis Gillogly, to help with a tree-felling project on Dennis’s father David Gillogly’s property to prevent interference with nearby cable television lines.
- Dennis had prior tree-felling training and experience; Wirtz had no tree-felling experience.
- Over several days, Wirtz observed the work and generally helped by stacking wood rather than cutting or felling trees; Dennis offered Wirtz a hard hat, which Wirtz refused.
- For a particular tree near the cable lines, David and Dennis decided to use a cable and ratchet system to influence the tree’s direction of fall; Dennis notched the tree with a chainsaw.
- Wirtz wrapped a cable around the trunk 20–30 feet above the ground; David secured and tightened it with a “come along” ratchet device.
- The agreed roles were: Dennis would cut, Wirtz would operate the ratchet, and David would signal when to tighten.
- While cutting, the tree’s trunk split; Dennis stopped and the men discussed how to proceed.
- Dennis offered Wirtz an opportunity to stop helping; Wirtz chose to continue, returned to his position, and planned an escape route.
- When Dennis resumed cutting, the tree split again and a portion struck Wirtz in the head, causing injury.
- Wirtz sued David, Dennis, and their marital communities for negligence; the trial court granted summary judgment for defendants based on assumption of risk.

## Issues

1. Whether Wirtz knowingly and voluntarily encountered the risk inherent in the tree-felling activity such that primary assumption of risk barred his negligence claims as a matter of law.
2. Whether Wirtz’s status on the property (invitee versus licensee) altered the duty owed and precluded summary judgment.

## Decision

- The Court of Appeals affirmed summary judgment for the Gilloglys.
- The court held Wirtz knowingly appreciated and voluntarily accepted the risk of injury from the tree-felling operation, including the heightened danger after the initial trunk split.
- Because the case was resolved on primary assumption of risk, the court did not decide whether Wirtz was an invitee or a licensee.

## Legal Principles

- Primary assumption of risk applies when a plaintiff, by conduct, consents to risks inherent in an activity; as to those inherent risks, the defendant owes no duty of protection.
- Assumption of risk requires proof the plaintiff knowingly and voluntarily chose to encounter the specific risk that caused the injury.
- Summary judgment is proper where the record permits only one reasonable conclusion: the plaintiff understood and accepted the risk, eliminating any duty element necessary for negligence.
- When primary assumption of risk negates duty, disputes about premises-liability status (e.g., invitee versus licensee) may be immaterial to the outcome.

## Conclusion

The court held that Wirtz’s unpaid, voluntary participation in a dangerous tree-felling effort—after observing the work, refusing offered safety equipment, recognizing the danger when the tree split, and electing to continue—constituted primary assumption of risk, barring his negligence claims and supporting summary judgment for the defendants.


Wirtz v. Gillogly, 152 Wn. App. 1, 216 P.3d 416 (Wash. Ct. App. 2009)